Lecture 8 - 9.10. 2018- Civil Practice (70104 PDF

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Lecture on Strikeouts, Summary Disposals and Vexatious Litigants...

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70104 Civil Practice

9/10/18

Lecture 8 Strikeout; Summary Disposal and Vexatious Litigants Strik Strikeout eout    

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Where a Court cuts down or strikes out a party’s pleadings in whole or part (UCPR r 14.28) Traditionally, if oral or written pleadings weren’t done properly, then pleading may be struck out. The Court has inherent power to deal with the strikeout process. Pleadings must be clear and set out the case that must be met. Material facts relevant to the cause of action must be plead (Banque Commerciale SA v Akhil Holdings) If facts are unclear and the nature of the case is unclear, then strikeout is possible.

R 14.28 UCPR  -

Provides that strikeout may be whole or part of pleading. 14.28(1)(a): If Party discloses no specific cause of action or defence e.g. Negligence/Defence to negligence 14.28(1)(b): If a party’s pleading causes embarrassment, prejudice or delay e.g. Due to vague or imprecise pleadings 14.28(1)(c): Is otherwise an abuse of court process Strikeouts are used sparingly, and parties are given an opportunity to re-plead. However, this can unfairly advantage the party by helping to strengthen their case.

Abuse of Process  -

Abuses are not defined and can take on a number of unlimited forms. Examples of abuses of process are below: Proceedings commenced for an improper purpose (Williams v Spautz 1992) Using different courts relating to same subject matter in different cases (Commonwealth of Australia v Cockatoo Dockyard 2003) Attempting to relitigate issues which have already been resolved in trial Modest claims involving disproportionate costs Destruction of evidence Case heard in improper court- Forum non conveniens 1

70104 Civil Practice

9/10/18

Summary Disposal       

Applications to the Court that can result in proceedings concluding before case goes to trial (Pt 13 UCPR) UCPR r 13.1- Summary Judgement UCPR r 13.4- Frivolous and vexatious proceedings UVPR 13.6- Non-appearance by Plaintiff Summary disposals dismiss the entire case due to the bad form of the case, rather than poor pleadings Allows defendant to throw out a case Proceedings can be dismissed where the proceedings where the proceedings are frivolous or vexatious, there’s no cause of action or an abuse of process.

Summary Judgement   

The plaintiff has to apply for it, through a motion supported by an affidavit Has to show the strengths of the plaintiff’s case and why the defendant will fail in its case i.e. Due to no defence Court can give judgement before a trial commences

Frivolous and Vexatious Proceedings   

Frivolous proceedings are without substance and are groundless Vexatious proceedings are not in good faith and attempts to cause undue stress to the other side A disposal must be by motion supported by affidavit

General Steel Industries (1964) 

Struck out and dismissed case because plaintiff had no cause of action, was groundless and there were no reasonable prospects of success.

Default Judgements    

Apply to proceedings which have already commenced through a statement of claim. UCPR r 16.2- Arises through procedural shortcomings, such as failing to file a defence or affidavit in time. UCPR r 16.3(2)- Requires an affidavit of service of the statement claim, and an affidavit in support of the claim Default judgements can be made in party’s absence

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70104 Civil Practice

9/10/18

Overturning a Default Judgement    

UCPR r 36.16 Party has a ground for defence An explanation for failure to attend If it’s necessary for best interest of justice to overturn

Dismissal for want of Due Despatch  

UCPR r 12.7 A dismissal can be ordered due to other factors such as changing solicitors many times or seeking many adjournments.

Vexatious Litigants   

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People who frequently bring actions, but don’t have grounds to do so. Covered by Vexatious Proceedings Act 2008 (NSW) Vexatious Proceeding Orders can be made against litigants who frequently bring vexatious proceedings. It can prohibit someone from going to court altogether (section 8) Those barred from bringing proceedings can seek leave of the court to bring a case forward (section 14(2)) Application must be made by motion with an affidavit outlining a legitimate claim, cause of action and past history of proceedings brought forward (section 14(3))

Rahman (2014)   

Tried to relitigate same issue repeatedly Behaved in an offensive manner towards judges Abused the process of justice, wasted court resources and made others incur great costs.

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